*1 326 WILLIAMS,
Annie Individually Administratrix, et al v. Fondville as & POWELL BROTHERS CARR
GIN & LAND COMPANY S.W. 2d 77-242 24, 1978 delivered April Opinion Banc) (In 30,May 1978.] denied [Rehearing *2 Cobb, Hale, B. & Memphis, Foglernan Rogers J. Tenn., for appellants. Brevallet, Reid, Rieves, & & Burge Rieves Shelton appellees. The question presented George Howard, Jr., Justice. sub- is whether the verdict is sustained by
for review jury’s found that decedents stantial evidence which Carr, Fondville were equally guilty appellee, in the dismissal in the same thus resulting degree, *3 the instituted death actions personal represen- wrongful the tatives of decedents.
FACTS a.m., 22, 1974, 12:15 On October at approximately Walker, decedents, Helen were Walker and Vera Joyner driven Walter in truck owned and passengers Turner1 pickup on Interstate an direction Highway easterly truck was the Tennessee. While enroute to pickup Memphis, Coun- on the Rock Island Crittenden Overpass proceeding Arkansas, in an accident was involved the truck ty, pickup the As a with a 1966 Pontiac station consequence, wagon. lane traffic came to across the westbound station rest wagon in the direction of to back the westbound traffic causing up the east- to rest across while the truck came Memphis, pickup in the direction of the traffic to back up lane bound causing West Arkansas. Memphis, the
While the decedents were in the of discussing process State Police with of the Arkansas accident representatives Carr, while truck, Fondville L. the near pickup appellee, unit in the westbound a 1966 Rio tractor-trailer operating both decedents and lane, median killing crossed the striking of them.2 citizens and residents were Turner and Walter 1The decedents and licensed Tennessee, truck pickup and the Shelby County, registered Tennessee. Tennessee and the truck that he is a resident and citizen of 2Appellee in Tennessee. registered is licensed and
was operating death action instituted a against wrongful Appellants & Land Powell Brothers Gin Company appellee Tennessee, of Fondville the alleged employer Memphis, $750,000.00 Carr, in the sum damages compensatory $150,000.00. in the sum punitive damages other The was tried to a things, case jury. Among to and answered by was submitted following interrogatory the jury:
“4. 100% to total responsibility Using represent occurrence, between for the responsibility apportion Answer: whom have found to be you parties responsible. — — 50%; 50%. Helen Walker Fondville'Carr “a) 100% to the total Using represent responsibility occurrence, for the between apportion responsibility whom have found to be parties you responsible. — — 50%; Joyner Answer: Fondville Carr Vera Walker 50%.”3
The on trial court directed a verdict in behalf of appellee the issue of damages punitive involving question whether Fondville L. was an Carr servant agent, employee of Powell Brothers Gin & Land Company. 14, 1977,
On court its trial entered February judg- *4 ment to verdict ac- pursuant jury’s dismissing appellants' tion. 4, 1977,
On March their motion for appellants presented a new trial which was denied the trial court.
APPELLANTS’ CONTENTIONS REVERSAL FOR
I. It was error to direct a verdict on the issue of punitive damages.
II. The trial court in erred to the jury submitting the issue of whether decedents were of guilty a sum should recover of the decedents found that the estates jury 3The for each funeral expense $967.70 cost of the this was the Apparently, each. decedent.
which was a cause of accident. proximate negli- of the jury apportioning verdict III. The of the accident cause awas which proximate gence was evidence. substantial supported IV. The trial court erred in to direct a ver- failing dict that Fondville Carr was appellee guilty negli- which was a cause of the accident. gence proximate in an instruction trial court erred V. The giving of sudden emergency.
VI. The trial court erred in instruct failing in accordance with the United States jury Department 391.41(a) one Transportation Regulation prohibiting from a motor vehicle unless he is driving physically to do so. qualified in
VII. The trial court erred to allow refusing rebuttal evidence of Arkansas Highway Department of Rock Island blueprint Overpass.
VIII. The trial court erred applying Tennessee Law on measure of damages wrongful death.
IX. The trial court erred a funeral allowing home director to as an witness on the issue testify expert of what is more than normal grief.
X. It was error to allow witness to testify expert view of violation of for names of discovery request witnesses.
XI. The trial court erred in refusing grant new trial because of inadequacy damages.
XII. It was error to direct a verdict that appellee *5 Fondville Carr was not an servant or agent, employee Powell & Brothers Gin Land appellee Company.
THE DECISION will for reversal be dis- The asserted points appellants in cussed seriatim:
I. trial court correct in We are that persuaded in on a verdict behalf of appellee-defendant directing Therefore, issue of the trial court is af- punitive damages. firmed on contention. this Walker,
In 2d we Williams Ark. S.W. held that the is recovery damages dependent exemplary found actual The that upon recovery damages. jury fault, decedents and were at appellee equally consequently, there was no actual recovery damages by appellants- plaintiffs.
II. We are convinced that second contention has appellants’ merit. The trial court should held of law have as matter decedents were which was a guilty prox- imate in cause of incident their deaths. resulting untimely we reverse the trial court’s action submit- Consequently, this ting question jury. that,
It from is clear the evidence the decedents were the instructions and directions of the following Arkansas State Police at time decedents were struck and killed by Moreover, the truck driven Fondville L. Carr. appellee, the evidence reflects decedents were at the standing only available and safest at time of the incident. place The evidence also reflects that Kim who was Wegner lane, a truck the westbound traffic his operating stopped accident, vehicle in the of the first his vicinity put four-way flashers on ran back in the direction of Memphis a crest in flares on the westbound placed traffic lane order to warn vehicles of the After approaching existing emergency. arrived, the state Kim obtained additional police Wegner flares from the them on the crest. police placed
332 truck
Kim testified that after Fondvilie L. Carr's Wegner eastbound had crossed the median and entered the traffic decedents, (Kim lane and struck the he and the Wegner) that the flares were in the state observed still police burning westbound lane. of testified that he Fondvilie Carr got up morning work; 21, 1974, 7:00 a.m. to at o’clock
October reported “3 hours of he had had or that only maybe sleep /2” he for work and “cab” his truck between time reported mid- the time the accident which occurred after shortly the record that all other motorists in the It is clear from night. lane observed the flares and their vehicles westbound brought to a in line with the backed traffic. up stop it to discuss
We deem conten- unnecessary appellants' III in view of the has taken in tions and IV Court position II. contention
V. giving We conclude that the trial court erred in an in- on sudden to the struction The record does emergency jury. Carr, a was Fondvilie L. support finding appellee, Moreover, with an faced one has to be free of emergency. in order to be entitled to an instruction sudden words, In other one create an may emergency. emergency to take his own action and then seek advantage an instruction on situation sudden by requesting emergency.
VI. contention, to this we Relative conclude that on a retrial made, cause, of this a is an instruction provided request per- (a) 391-41 States of the United taining ment of Regulation Depart- be W'e cannot should Transportation granted. from the this visualize any admissibility prejudice resulting regulation.
VII. of the Rock Island We hold that the blueprint Overpass is admissi- the Arkansas Highway Department prepared in refus- committed error and, trial court ble accordingly, evidence that clear from the document. It is to admit this ing the offered was constructed pursuant overpass alterations not been there had blueprint structure; in the blueprint consequently, changes *7 time the at the of the correct mechanical overpass drawing Lawrence, 239 Ark. La. Gas accident occurred. See: Ark. Co. 365, 389 2d 431. S.W.
VIII. 622, 550 261 Ark. In Wallis v. Mrs. Smith's Pie Company, a resident held in a S.W. 2d we that tort action involving Arkansas, of resident or residents of another state and/or rule based on the “most our courts are the free apply named as affected relationship” following significant (1) of considerations: Predictability choice-influencing of interstate and international (2) results. Maintenance (4) of Advancement (3) order. task. judicial Simplication (5) of forum’s interests. of the governmental Application Court, words, better rule of law. In other the Arkansas as the court, forum is free to the substantive of sister law a apply in state where it finds that such state has a interest significant However, the outcome of the issues involved. the rules of the road of the state where the tortious conduct occurred are applied. Wallis,
Under the substantive law of Tennessee is but rules the road Arkansas’ of are applicable, applicable the instant case. error court committed
We conclude that the trial as both law inasmuch ap- substantive Tennessee’s applying are residents and appellees-defendants pellants-plaintiffs Tennessee, occurred in the while the accident State However, elect to be State of Arkansas. may parties of the both Arkansas’ substantive law and rules governed road. IX. Marvin a licensed embalmer and funeral Thompson, director, who testified that he attended the Dallas Institute of Dallas, Texas, that he his Science at obtained Mortuary license in late over the objections appellants, the trial witness on the court as an expert ques- qualified by tion of and mental grief anguish.4
Mr. and, from was excused the rule accord- Thompson he trial; sat the courtroom the two ingly, during days he heard all of the concern- testimony given by plaintiffs and mental they had sustained. ing grief anguish concluded, Marvin from this limited Thompson observation of the had appellants-plaintiffs, sustained appellants more than normal as a nothing grief loss consequence of their loved ones.
The action of the trial court in a mortician as qualifying an on the issue of mental expert is rather anguish grief to this Court. It is well shocking disturbing settled that a witness as an if he may testify skill or expert possesses special with to the matter involved knowledge that of men in respect so superior as to make his
general
formation of a judgment
*8
a fact of
value. Blanton v.
probative
Missouri
Railroad
Pacific
543,
182 Ark.
Also, Evidence, under Rule 702 of the Uniform Rules of it is as follows: provided — scientific, technical, If
“Testimony by experts. or other will specialized assist the trier of knowledge fact to understand the evidence or to determine a fact in issue, a witness as an qualified expert by knowledge, skill, education, or experience, training, may testify thereto in the form of an or otherwise.” opinion We are not that Mr. persuaded attendance Thompson’s at an institute of science and his mortuary participation 200 funerals would approximately him as an to qualify expert offer constructive any objective testimony relating degree mental intensity realized anguish grief appellants-plaintiffs. We submit that Mr. definition of extraor- Thompson’s illustrates dinary grief his limited very of the sub- knowledge matter and not law, does it ject only but was represent he Thompson approximately 4Marvin testified that had attended 200 years, funerals over the but had not handled funerals past involving black The decedents involved in this action are black. people. for mental suffer- claim of damages devastating appellants’ and grief: ing is that grief extraordinary grief
“In my opinion, be or she has to and he cannot overcome a person in a mental doctor, or put treated aby psychiatrist hospital.” Admx., 2d S.W. 233 Ark.
In Oliger, Peugh as follows: said, other we things, among “ suf- mental . is that the anguish \ . necessary [I]t cause, the result and not real and with merely fered be “ ”, . ‘It . mind morbid too or a a sensitive imagination.’ a mental for which will thus be seen that anguish of an- must consist can be had simply recovery of the mind or suffering noyance disappointment situation, be but it must of some out imaginary growing some ills, from the real distress of mind actual flowing ” life.’ sorrows and griefs We, this contention therefore, the trial court on reverse asserted by appellants.
XII. court reversible We conclude that the trial committed verdict in behalf Powell error a directed granting on the whether Fond- Brothers & Land issue Gin Company *9 was an of Powell Brothers ville L. Carr employee agent the convinced that & Land We are testimony Gin Company. have the issue should a fact consequently, question, presented been submitted to the jury. Gin
The that Powell Brothers & Land evidence reflects to the truck owned the trailer that attached Company Carr; that the Fondville L. seeds driven and owned by Brothers Gin contained trailer were owned Powell in the moreover, that the record further reflects & Land Company; the hours Gin & determined Powell Brothers Land Company the that number that Fondville L. Carr worked trips to from Tennessee Arkansas he would make each day Furthermore, clear the it is from the merchandise. delivering 336 that
record Powell Brothers Gin & Land specifical- Company directed a Fondville Carr to make return to Arkan- ly trip sas with his merchandise and he was these direc- following tions when the accident occurred.
Affirmed reversed in and remanded. part, part Byrd, concurs. J.,
George Holt, Rose Smith dissent in JJ., part. Conley Byrd, with I concur the Justice, concurring. in the I result must admit that the opinion majority although 622, rule v. in Wallis Mrs. Smith's Pie 261 550 Ark. Company, (1977), 453 to S.W. 2d as seems give applied plaintiff two best of worlds.
However, I cannot view accept minority decedents were that was a guilty proximate of their cause death. had the until assume They right became that the the west- contrary people apparent using bound would cross the median. To portion freeway view would make a as to minority’s accept the jury question of a motorist a time liability traveling along any freeway the motorist is struck a vehicle the median of crossing of our interstate It would come as highway systems. quite shock citizen of State this to find out that he average could be held liable for such damages under circumstances. Adm., Farrell, See Prickett v. 248 455 74 Ark. 2d S.W. (1970) and 2d 589 Scott Ark. S.W. Jansson, (1974). stated,
For the herein reasons concur in the result of the majority opinion.
George Smith, Rose I wish to ex- Justice, dissenting. press my with to the disagreement only regard majority’s second there are other point, issues which although I upon am accord with the complete decision. majority were,
The hold the decedents aas matter majority *10 law, of any of which was a proximate guilty negligence acci- the first the is that after of their death. Yet cause proof of in the traveled 25 minutes portion for dent remained they before which was traffic, 15 minutes of lanes the of eastbound were in the car they mere the arrived. As passengers police which safety, to a to walk position complete free certainly The few seconds. jury have done a could apparently they that of their equal found negligence truckdriver, Carr, in the of that majority but face finding free from were the decedents absolutely declare that whatever. negligence to a will amount directed retrial that a holding
Upon is for the We have held it verdict for the jury plaintiffs. to determine the a case negligence negligence comparative Matthews, 2d 889 v. 241 Ark. 408 S.W. each Baker party. a stand- case, Moreover, upon (1966). turning a ngeligence directed care, verdict should be ard of ordinary situation, is no rational basis in the unless there plaintiff for the testimonially, circumstantially inferentially, jury Mourton, 235 Ark. find for defendant. Spink here, (1962). S.W. 2d 665 The is critical question especially if case is retried under Tennessee law defend- because of con- are defense ants being deprived complete under that law. Since the tributory jury might in a remained too believe that the decedents carelessly long death, their which contributed jo place actually danger, no has cannot that the issue of their agree possible negligence in the case. place